Industrial Relations Commission of New South Wales CITATION: King v. Endeavour Industries Goulburn [2008] NSWIRComm 1031 APPLICANT Kathleen King PARTIES: RESPONDENT Endeavour Industries Goulburn FILE NUMBER(S): IRC 4328 of 2005 CORAM: Connor C CATCHWORDS: termination of employment - delayed proceedings - claim for monetary compensation - application withdrawn - application for costs rejected LEGISLATION CITED: Industrial Relations Commission Rules 1996 Dryer v. Insurance Resources (Brokers) Pty Limited - unreported CASES CITED: Henderson v. Rural Lands Protection Board (1997) 74 IR 142 Latoudis v. Casey (1990) 170 CLR 534 EXTEMPORE JUDGMENT DATE : 16 April 2008 APPLICANT Bruce Howes Howes Kaye Halpin, Solicitors LEGAL REPRESENTATIVES: RESPONDENT Beth Kitchener Australian Business Lawyers DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Wednesday, 16 April, 2008 Matter No IRC 4328 of 2005 Kathleen King and Endeavour Industries Goulburn Inc Application under S.84 of the Industrial Relations Act, 1996 DECISION [2008] NSWIRComm 1031 1 Pursuant to the provisions of Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, Ms Kathleen King lodged an application concerning the termination of her services as an accountant and office administrator with Endeavour Industries Goulburn, a sheltered workshop for disabled adults in Goulburn. Ms King claims she was dismissed on Friday, 29 July, 2005 after two years of employment for alleged unauthorised absence from work and she alleged that her dismissal was unfair. Endeavour Industries assert that Ms King abandoned her employment. 2 Ms King's Part 6 application was allocated initially to O'Neill C whose attempt at conciliation by way of a teleconference on Thursday, 27 October, 2005 was not successful. When O'Neill C took extended leave the matter was reallocated to me. I set the matter down for a mention on Thursday, 15 December, 2005 in the Queanbeyan Court House. However, Ms King wrote to me on Wednesday, 15 December, 2005 informing me that she had dismissed the solicitor formerly representing her and she requested an adjournment until early in 2006. I reconvened the proceedings in Queanbeyan on Thursday, 2 February, 2006. 3 The matter did not settle at that time and I made directions consistent with Practice Direction No.17. The file was returned for programming for arbitration to be heard at the request of the parties in Goulburn. The matter was allocated for arbitration to McKenna C whose regional commitments included Goulburn. It was scheduled for hearing before her on Thursday, 20 July, 2006 and Friday, 21 July, 2006. The hearing did not proceed, however. The hearing dates were vacated pending the conclusion of proceedings concerning charges made against Ms King. The Part 6 proceedings were stood over generally to await the outcome of those other proceedings which were, as I understand, subsequently withdrawn by the prosecutor. 4 In a letter to the Registry dated Wednesday, 19 September, 2007 the solicitor (Mr Howes) now representing Ms King sought that the Part 6 proceedings be reconvened. I set the matter down for a mention and programming on Friday, 5 October, 2007 (in Sydney) but vacated those proceedings at the request of Mr Howes. I set the matter down again for a mention on Wednesday, 17 October, 2007 and Thursday, 25 October, 2007 instead. Whilst there had been compliance with directions made concerning the earlier vacated hearing and a substantial amount of material already provided in evidence, I made further directions, in a sense to update the material already provided, setting the matter down for a further mention for programming on Wednesday, 30 January, 2008 and, at the request of the parties, for further conciliation on Wednesday, 16 April, 2008. 5 On Tuesday, 15 April, 2008 Mr Howes wrote to me in the following terms: "...Our agent has previously indicated to the Commission, on instructions, that conciliation is most unlikely to see the matter resolved, given the conduct of the respondent thus far. This firm has been in contact with the respondent's solicitors since the matter was last before the Commission and despite our explanation of our client's position, has not seen any response at all from the respondent that would suggest the matter can be resolved. Our client has indicated that she is not prepared to spend money which she does not have travelling to Sydney, nor is she prepared to fund the writer the cost of travel to and from Sydney. We are instructed by our client that on a previous occasion, before this firm was instructed, that there was a short and failed attempt at conciliation conducted by telephone. To that extent, our client requests that the conciliation listed for tomorrow be conducted by telephone, wherein the applicant will attend at this office with the writer for that purpose. We therefore respectfully request that the conciliation listed for tomorrow, Wednesday, 16 April, 2008 be, at least from our perspective, conducted by telephone..." I agreed to that request and the matter proceeded before me for conference on Wednesday, 16 April, 2008. In the proceedings Ms Kitchener represented Endeavour Industries, appearing in person, and Mr Howes , representing Ms King, with her in attendance in his office, spoke on the telephone. 6 Ms King is not seeking reinstatement in employment with Endeavour Industries in terms of S.89(1). In any event, particularly in view of the delay in this matter proceeding and the issues which have emerged since Ms King lodged her Part 6 application, reinstatement in employment would no longer appear to me to be practicable. Ms King's claim is therefore confined to monetary compensation under S.89(5). Ms Kitchener had conveyed an offer of a monetary settlement of the claim which has been rejected by Ms King, whose counter claim far exceeds the jurisdiction permitted me by S.89(5) - six months salary - and embraces some claim for damages for suffering she alleged she incurred and sums that she claims were underpayments in her salary which Endeavour Industries disputes. 7 Monetary compensation under S.89(5) is not damages. S.89(5) speaks of only "remuneration", meaning actual earnings, and it concerns loss of income. It is neither punitive (punishing a respondent for wrongdoing) nor speculative (taking into account income that might possibly have been earned but was not). McKenna C described the position with Ss.89(5) best in Henderson v. Rural Lands Protection Board (1997) 74 IR 142 at p.150, when she indicated that the purpose of monetary compensation in Part 6 proceedings: "…is not to enrich an applicant nor to punish a respondent. Rather, as the remedy indicates, the purpose of the remedy of compensation is to compensate for losses occasioned by a harsh, unreasonable or unjust dismissal..." 8 In the circumstances, it appears that the Part 6 proceedings before me will never produce a result comparable to the claim that Ms King indicates that she proposes to make against Endeavour Industries. Nor may I consider any claim for alleged underpayment of salaries outside the limitations of the small claims jurisdiction of Ss.379 and 380, ie on the application of a trade union and limited to $20,000. Mr Howes informed me that Ms King proposed to pursue her claim for damages against Endeavour Industries elsewhere and she now proposed to withdraw her Part 6 application. Ms Kitchener did not oppose the withdrawal of Ms King's Part 6 application. 9 I grant Ms King leave to discontinue her Part 6 application in accordance with Rule 138. In due course, Mr Howes is to provide me with a notice of discontinuance but I see no reason why I may not now conclude the matter on the basis of his confirmation of Ms King's intentions given over the telephone in the proceedings on Wednesday, 16 April, 2008. 10 Ms Kitchener has also pressed a claim for costs against Ms King in these proceedings. Costs in Part 6 proceedings are confined by S.181(2)(c), viz: (i) against a party who, in the opinion of the member, unreasonably failed to agree to a settlement of the claim; and (ii) against an applicant if the member considers the application was frivolous or vexatious. 11 Ms Kitchener's claim for costs is mounted on the basis of an allegation that Ms King had been unreasonable in failing to accept the offer of settlement of her Part 6 application communicated to her. I do not believe that it is appropriate to consider claims for costs in abandoned proceedings, however. As I pointed out in my unreported decision on Thursday, 15 May, 1997 in Dryer v. Insurance Resources (Brokers) Pty Limited [Matter No. IRC 6497 of 1996 at pp.3 and 4]: "…Costs follow the event [ Latoudis v. Casey (1990) 170 CLR 534]. A classic Catch 22 situation arises with (the dismissed employee's) Part 6 application. There is no evidence before me to conclude that there was an unreasonable failure on (the applicant's) part to agree to a settlement of his claim or that his application was frivolous or vexatious. Nor will there ever be if the matter does not proceed any further to hearing. It is neither the wish of the applicant nor the respondent that the matter proceed to hearing…" 12 I therefore reject any claim for costs in these proceedings. P J CONNOR Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.